The opinion
UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF ILLINOIS
SCOTT MCMAHON, )
Plaintiff, )
)
vs. ) Case No. 22-1198
)
BRAD JOHNSON, et.al, )
Defendants )
MERIT REVIEW ORDER
JAMES E. SHADID, U.S. District Judge:
This cause is before the Court for consideration of Plaintiff’s motion for leave to
file an amended complaint. [18].
Plaintiff’s initial compliant was dismissed for failure to state a claim upon which
relief could be granted and violation of Federal Rule of Civil Procedure 8. See October
12, 2022 Merit Review Order. Plaintiff had failed to provide a sufficient factual basis to
put the Defendants on notice of his claims and did not indicate how each Defendant
was responsible for his claims. The Court allowed the pro se Plaintiff additional time to
file an amended complaint and directions to assist him.
The Court then granted Plaintiff’s two motions for an extension of time, but
when he failed to file anything by the final, December 16, 2022 deadline, his case was
dismissed. See February 6, 2023 Text Order.
Plaintiff then filed a motion to reconsider with an affidavit from his facility’s law
librarian, confirming he had timely provided his proposed amended complaint to
prison officials, but due to technical issues it was not received. [17]. The motion was
granted and Plaintiff’s motion for leave to file an amended complaint is now before the
Court. [18]. The motion is granted pursuant to Federal Rule of Civil Procedure 15. [18].
The Court is required by 28 U.S.C. §1915A to “screen” the Plaintiff’s amended
complaint, and through such process to identify and dismiss any legally insufficient
claim, or the entire action if warranted. A claim is legally insufficient if it “(1) is
frivolous, malicious, or fails to state a claim upon which relief may be granted; or (2)
seeks monetary relief from a defendant who is immune from such relief.” 28 U.S.C.
§1915A.
Plaintiff’s amended complaint identifies eight Defendants at Illinois River
Correctional Center including Illinois Department of Corrections (IDOC) Director Rob
Jefferys, Warden Cheryl Hinthorne, Assistant Warden Tiffanie Clark, Placement Officer
King, Unknown Placement Officer John or Jane Doe, Lieutenant Brad Johnson,
Correctional Officer Ellinger, and an unknown Correctional Officer.
Plaintiff says he “is an openly homosexual male” who was convicted of sexually
abusing a child.. (Amd. Comp., p. 5). “Both of these groups are well known by the
Courts and the Defendants to be groups that are targeted by other prisoners for
harassment, abuse, and violence.” (Amd. Comp., p. 5). Nonetheless, the Defendants
repeatedly turned a blind eye to Plaintiff’s reports of threats or concerns for his safety
resulting in sexual assaults and harassment. In addition, Plaintiff says IDOC has a
policy and practice of placing LBGTQ inmates in general population with full
knowledge of the consequences.
Plaintiff’s complaint outlines in detail the sexual abuse and harassment he
endured throughout his stay at Illinois River Correctional Center beginning when he
entered the facility on July 21, 2017. Plaintiff outlines his specific requests for help and
his reports of repeated sexual assaults. Plaintiff then lists eight separate counts.
Count I alleges all Defendants violated his Eighth Amendment rights when they
failed to protect him. Plaintiff lists individual capacity claims against all Defendants
except IDOC Director Jefferys. The claim as stated against Defendant Jeffreys is in his
official capacity based on IDOC policies and practices. In addition, Plaintiff has
articulated an official capacity claim against Warden Hinthorn for her failure to
implement policies or train staff. While Plaintiff also lists Assistant Warden and
Lieutenant Johnson for his official capacity claim, neither would be responsible for
overall policies or training at Illinois River.
Count II alleges an Eighth Amendment violation against each Defendant for
subjecting Plaintiff to cruel and unusual punishment in his living conditions at Illinois
River Correctional Center. Again, Plaintiff has articulated individual capacity claims as
well as official capacity claims against Defendants Jefferys and Hinthorn.
Count III alleges an Eighth Amendment violation based on a failure to intervene.
The Court notes a failure to intervene claim can be distinct from a failure to protect
claim. Dwyer v. Neal, 2022 WL 462017, at *23 (N.D.Ind. Feb, 15, 2022). Prison officials
have a duty to “take reasonable measures to guarantee the safety of the inmates.”
Hudson v. Palmer, 468 U.S. 517, 526-27 (1984)); see also Mayoral, 245 F.3d at 938. Therefore,
to state a failure to protect claim, a plaintiff-inmate must claim (1) “he is incarcerated
under conditions posing a substantial risk of serious harm,” and (2) defendant-officials
acted with “deliberate indifference” to that risk. Farmer v. Brennan, 511 U.S. 825, 834
(1994); see also Brown v. Budz, 398 F.3d 904, 909 (7th Cir.2005).
On the other hand, an officer may be liable for a failure to intervene claim “if any
constitutional violation has been committed by a law enforcement official; and the
officer had a realistic opportunity to intervene to prevent the harm from occurring.”
Abdullahi v. City of Madison, 423 F.3d 763, 774 (7th Cir. 2005) (quotation marks and
citations omitted). At this stage, Plaintiff has adequately articulated two separate
claims for the purposes of notice pleading.
Count IV alleges Defendants Jefferys, King, Unknown Placement Officer,
Johnson, and Ellington retaliated against him for his complaints and grievances.
Count V alleges the Defendants violated his due process rights based on a failure
to abide by the policies of the Prison Rape Elimination Act (PREA). As previously
explained, the PREA does not create a private right of action in federal court. See i.e.
McRae v. Myers, 2022 WL 1185133, at *7 (S.D.Ill. April 21, 2022); Sharp v. Numsen, 2022
WL 834421, at *7 (W.D.Wis. March 21, 2022); Sims v. Doe, 2018 WL 4027632, at *3
(S.D.Ind. Aug. 22, 2018). Consequently, “the PREA does not give prisoners a personal
right to sue for an official's failure to comply with the Act's requirements.” Austin v.
Baldwin, 2020 WL 6047178, at *6 (S.D.Ill. Oct. 13, 2020)(dismissing due process claim
based on PREA); Watson v. Dodd, 2017 WL 120951, at *6 (S.D.Ill. Jan. 12, 2017)(same).
Plaintiff cannot proceed with Count V.
Counts VI, VII, and VIII are state law claims for Intentional Infliction of
Emotional District, Negligence, and Respondeat Superior.
For purposes of notice pleading, Plaintiff may proceed with all claims except
Count V which is dismissed for failure to state a claim.
IT IS THEREFORE ORDERED:
1) Pursuant to its merit review of the complaint under 28 U.S.C. § 1915A, the
Court finds the Plaintiff alleges Defendants Illinois Department of Corrections
Director Rob Jefferys, Warden Cheryl Hinthorne, Assistant Warden Tiffanie
Clark, Placement Officer King, Unknown Placement Officer John or Jane Doe,
Lieutenant Brad Johnson, Correctional Officer Ellinger, and an unknown
Correctional Officer failed to protect him, violated his Eighth Amendment rights,
failed to intervene, retaliated, and committed the state law offenses of
negligence, intentional infliction of emotional distress, and respondeat superior
as stated in Counts I-4 and 6-8 of the Amended Complaint. Any additional
claims shall not be included in the case, except at the Court’s discretion on
motion by a party for good cause shown or pursuant to Federal Rule of Civil
Procedure 15.
2) This case is now in the process of service. Plaintiff is advised to wait until
counsel has appeared for Defendants before filing any motions, in order to give
Defendants notice and an opportunity to respond to those motions. Motions filed
before Defendants' counsel has filed an appearance will generally be denied as
premature. Plaintiff need not submit any evidence to the Court at this time, unless
otherwise directed by the Court.
3) The Court will attempt service on Defendants by mailing each Defendant a
waiver of service. Defendants have 60 days from service to file an Answer. If
Defendants have not filed Answers or appeared through counsel within 90 days
of the entry of this order, Plaintiff may file a motion requesting the status of
service. After Defendants have been served, the Court will enter an order setting
discovery and dispositive motion deadlines.
4) With respect to a Defendant who no longer works at the address provided by
Plaintiff, the entity for whom that Defendant worked while at that address shall
provide to the Clerk said Defendant's current work address, or, if not known, said
Defendant's forwarding address. This information shall be used only for
effectuating service. Documentation of forwarding addresses shall be retained
only by the Clerk and shall not be maintained in the public docket nor disclosed
by the Clerk.
5) Defendants shall file an answer within 60 days of the date the waiver is sent by
the Clerk. A motion to dismiss is not an answer. The answer should include all
defenses appropriate under the Federal Rules. The answer and subsequent
pleadings shall be to the issues and claims stated in this Order. In general, an
answer sets forth Defendants' positions. The Court does not rule on the merits of
those positions unless and until a motion is filed by Defendants. Therefore, no
response to the answer is necessary or will be considered.
6) Once counsel has appeared for a Defendant, Plaintiff need not send copies of
his filings to that Defendant or to that Defendant's counsel. Instead, the Clerk will
file Plaintiff's document electronically and send a notice of electronic filing to
defense counsel. The notice of electronic filing shall constitute service on
Defendants pursuant to Local Rule 5.3. If electronic service on Defendants is not
available, Plaintiff will be notified and instructed accordingly.
7) Counsel for Defendants is hereby granted leave to depose Plaintiff at his place
of confinement. Counsel for Defendants shall arrange the time for the deposition.
8) Plaintiff shall immediately notify the Court, in writing, of any change in his
mailing address and telephone number. Plaintiff's failure to notify the Court of a
change in mailing address or phone number will result in dismissal of this lawsuit,
with prejudice.
9) Within 10 days of receiving from Defendants’ counsel an authorization to
release medical records, Plaintiff is directed to sign and return the authorization
to Defendants’ Counsel.
IT IS FURTHER ORDERED THAT THE CLERK IS DIRECTED TO:
1) Grant Plaintiff’s Motion for Leave to File an Amended Complaint, [18]; 2)
Add Defendant John Doe Placement Officer (in addition to the current John
Doe Correctional Officer) and Defendant Cheryl Hinthorne; 3) Attempt
service on Defendants pursuant to the standard procedures; 4) Set an internal
court deadline 60 days from the entry of this order for the court to check on the
status of service and enter scheduling deadlines; and 5) Enter the Court's
standard qualified protective order pursuant to the Health Insurance
Portability and Accountability Act.
ENTERED this 21st day of April, 2023.
s/James E. Shadid
____________________________________________
JAMES E. SHADID
UNITED STATES DISTRICT JUDGE